Providing a mechanism for recognizing AI authorship is critical to jumpstarting new creative possibilities and spur investment and development of AI

But with the latest types of artificial intelligence, the computer program is no longer a tool; it actually makes many of the decisions involved in the creative process without human intervention. COMMERCIAL IMPACT One could argue that this distinction is not important, but the manner in which the law tackles new types of machine-driven creativity could have far-reaching commercial implications. Artificial intelligence is already being used to generate works in music, journalism and gaming. These works could in theory be deemed free of copyright because they are not created by a human author. As such, they could be freely used and reused by anyone. That would be very bad news for the companies selling the works. Imagine you invest millions in a system that generates music for video games, only to find that the music is not protected by law and can be used without payment by anyone in the world. While it is difficult to ascertain the precise impact this would have on the creative economy, it may well have a chilling effect on investment in automated systems. If developers doubt whether creations generated through machine learning qualify for copyright protection, what is the incentive to invest in such systems? On the other hand, deploying artificial intelligence to handle time-consuming endeavors could still be justified, given the savings accrued in personnel costs, but it is too early to tell. LEGAL OPTIONS There are two ways in which copyright law can deal with works where human interaction is minimal or non-existent. It can either deny copyright protection for works that have been generated by a computer or it can attribute authorship of such works to the creator of the program. To my knowledge, conferring copyright in works generated by artificial intelligence has never been specifically prohibited. However, there are indications that the laws of many countries are not amenable to non-human copyright. In the United States, for example, the Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.” This stance flows from case law (e.g. Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)) which specifies that copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Similarly, in a recent Australian case (Acohs Pty Ltd v Ucorp Pty Ltd), a court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human. In Europe the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v. Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist. The second option, that of giving authorship to the programmer, is evident in a few countries such as the Hong Kong (SAR), India, Ireland, New Zealand and the UK. This approach is best encapsulated in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states: “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” Furthermore, section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. The idea behind such a provision is to create an exception to all human authorship requirements by recognizing the work that goes into creating a program capable of generating works, even if the creative spark is undertaken by the machine. ADDRESSING AMBIGUITY This leaves open the question of who the law would consider to be the person making the arrangements for the work to be generated. Should the law recognize the contribution of the programmer or the user of that program? In the analogue world, this is like asking whether copyright should be conferred on the maker of a pen or the writer. Why, then, could the existing ambiguity prove problematic in the digital world? Take the case of Microsoft Word. Microsoft developed the Word computer program but clearly does not own every piece of work produced using that software. The copyright lies with the user, i.e. the author who used the program to create his or her work. But when it comes to artificial intelligence algorithms that are capable of generating a work, the user’s contribution to the creative process may simply be to press a button so the machine can do its thing. There are already several text-generating machine learning programs out there, and while this is an ongoing area of research, the results can be astounding. Stanford PhD student Andrej Karpathy taught a neural network how to read text and compose sentences in the same style, and it came up with Wikipedia articles and lines of dialogue that resembled the language of Shakespeare. Some case law seems to indicate that this question could be solved on a case-by-case basis. In the English case of Nova Productions v. Mazooma Games [2007] EWCA Civ 219, the Court of Appeal had to decide on the authorship of a computer game, and declared that a player’s input “is not artistic in nature and he has contributed no skill or labour of an artistic kind”. So considering user action case by case could be one possible solution to the problem. THE FUTURE Things are likely to become yet more complex as use of artificial intelligence by artists becomes more widespread, and as the machines get better at producing creative works, further blurring the distinction between artwork that is made by a human and that made by a computer. Monumental advances in computing and the sheer amount of available computational power may well make the distinction moot; when you give a machine the capacity to learn styles from large datasets of content, it will become ever better at mimicking humans. And given enough computing power, soon we may not be able to distinguish between human-generated and machine-generated content. We are not yet at that stage, but if and when we do get there, we will have to decide what type of protection, if any, we should give to emergent works created by intelligent algorithms with little or no human intervention. Although copyright laws have been moving away from originality standards that reward skill, labor and effort, perhaps we can establish an exception to that trend when it comes to the fruits of sophisticated artificial intelligence. The alternative seems contrary to the justifications for protecting creative works in the first place. Granting copyright to the person who made the operation of artificial intelligence possible seems to be the most sensible approach, with the UK’s model looking the most efficient. Such an approach will ensure that companies keep investing in the technology, safe in the knowledge that they will get a return on their investment. The next big debate will be whether computers should be given the status and rights of people, but that is a whole other story.